The City of San Diego leases large parcels of prime parkland to the Boy Scouts of America at nominal rates. The Boy Scouts discriminate in membership and employment against atheists and agnostics by requiring scouts and leaders to profess a belief in God. A federal trial court held that the leases were unconstitutional because the Boy Scouts are a religious organization and San Diego’s leasing process was not neutral. The Boy Scouts appealed to the U.S. Court of Appeals for the Ninth Circuit. In April 2005, we filed an amicus brief arguing that the trial court’s decision should be affirmed because San Diego’s leases to the Boy Scouts amounted to direct government funding of religious discrimination, in violation of the Establishment Clause and Equal Protection Clause.
On December 18, 2006, the Ninth Circuit asked the California Supreme Court to clarify whether the City's leases to the Boy Scouts violated the California Constitution's “No Preference” or “No Aid” Clauses, which prohibit government support for religion. The California Supreme Court twice declined to address these questions, and the Ninth Circuit then ordered the parties to submit supplemental briefs on any relevant developments of California and federal law occurring after the original briefing. After hearing oral argument in June 2011, the Ninth Circuit ordered the parties to file additional briefs addressing whether the case is moot or will become moot before the court could resolve the case. The parties filed those briefs in July 2011; we await the Ninth Circuit’s decision.